Gujarat High Court
Secretary(Cpf) vs Bhurbha Narubha Jadeja on 7 January, 2022
Author: S.H.Vora
Bench: S.H.Vora
C/LPA/914/2020 CAV JUDGMENT DATED: 07/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 914 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 8890 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In
R/LETTERS PATENT APPEAL NO. 914 of 2020
With
R/LETTERS PATENT APPEAL NO. 926 of 2020
In
SPECIAL CIVIL APPLICATION NO. 13431 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In
R/LETTERS PATENT APPEAL NO. 926 of 2020
In
SPECIAL CIVIL APPLICATION NO. 13431 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE S.H.VORA SD/-
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE SD/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
SECRETARY(CPF)
Versus
BHURBHA NARUBHA JADEJA
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C/LPA/914/2020 CAV JUDGMENT DATED: 07/01/2022
Appearance:
MR MAYUR DHOTRE FOR GUPTA LAW ASSOCIATES(9818) for the
Appellant(s) No. 1,2
PARITOSH R GUPTA(7583) for the Appellant(s) No. 1,2
for the Respondent(s) No. 2
MR SAMIR AFZAL KHAN(3733) for the Respondent(s) No. 1
MR SOHAM JOSHI, AGP State of Gujarat.
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CORAM:HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 07/01/2022
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE S.H.VORA) Feeling aggrieved and dissatisfied with the common oral judgment dated 21/09/2020 rendered by the learned Single Judge in SCA No.8890 of 2018 with SCA No.13431 of 2018, the appellants-Gujarat Industrial Development Corporation-original respondents No.2 and 3 have preferred the captioned appeals under Clause 15 of the Letters Patent.
2. Since the common issue of facts and law are involved in the appeals, both the appeals are being heard and decided together by this common judgment.
3. We have heard learned Advocate Mr.Mayur Dhotre for Gupta Law Associates, for the appellants and learned Advocate Mr.Samir Afzal Khan, learned Advocate for the private respondents.
4. The controversy raised in the writ petition was of withholding of retiral dues of the private respondents viz., contributory provident fund, group savings link insurance, Page 2 of 12 Downloaded on : Wed Jan 12 17:49:27 IST 2022 C/LPA/914/2020 CAV JUDGMENT DATED: 07/01/2022 gratuity, etc., on the ground that the private respondents, after retirement are in illegal occupation of the residential quarters allotted to them during their service tenure. The private respondents in both the petitions preferred by them have prayed for direction to quash and set aside the order dated 30/04/2018 and 31/07/2018 respectively passed by the appellant authority whereby the retiral dues have been withheld.
5. The learned Single Judge after considering the pleadings and submissions made at bar and considering the case law cited at bar held that order dated 30/04/2018 and 31/07/2018 are illegal and therefore quashed and set aside with a direction to the appellants to forthwith release the retiral dues to the private respondents within a period of six weeks from the date of the judgment together with interest @ 6% on the unpaid amount of retiral dues from the date it had fallen due. While allowing the petition preferred by the private respondents, the appellants were directed to pay a cost of RS.5,000/- to each of the private respondents within a period of six weeks from the date of the judgment.
6. Brief facts leading to the writ petition by the private respondents stated thus:
6.1 The private respondents were appointed in the year 1983 as pumpmen for operating the pump at Aji Industrial Area, GIDC, Rajkot. In the year 1987, the private respondents were allotted quarters and rent towards the said quarters was deducted from the salary of the private respondents and thus they have spent substantial part of their life by residing in the Page 3 of 12 Downloaded on : Wed Jan 12 17:49:27 IST 2022 C/LPA/914/2020 CAV JUDGMENT DATED: 07/01/2022 said quarters. As per the facts and pleadings, the appellant-
GIDC issued Notification dated 27/04/1998 for allocation of residential quarters, apropos to which the private respondents have applied for allocation on hire purchase system. The private respondents submitted their application for allotment of the quarters on hire purchase system. Subsequently, new notification dated 18.10.2002 came to be issued and since the private respondents were fulfilling all the terms and conditions prescribed under the said Notification and also made payment of Rs.2,000/- by way of demand draft as per one of the requirement in the said Notification.
6.2 It appears that the applications of the private respondents were processed and some office notes were also made in that regard by the appellant authority and when matter was sent for necessary approval for allocation of quarters, the private respondents were transferred from Rajkot to Sanand and therefore, contemplating eviction, the private respondents filed a writ petition being SCA No.1753 of 2016. Vide order dated 27/06/2018, the said petition was partly allowed with a direction to the GIDC to allow the petitioners therein to occupy the quarters strictly in accordance with the terms and conditions of the allotment and the private respondents were also directed to file separate undertakings to GIDC, inter alia, stating that they would not use in any way, the quarters for running any commercial activity and the Court further directed that only upon filing of such undertaking, GIDC to take an appropriate formal decision of passing necessary orders approving the allotment of quarters at Rajkot. It is a matter of fact that the said order has never been carried further by the appellants.
Page 4 of 12 Downloaded on : Wed Jan 12 17:49:27 IST 2022C/LPA/914/2020 CAV JUDGMENT DATED: 07/01/2022 6.3 Since the private respondents crossed the age of superannuation, appellant No.2 passed an order dated 30/04/2018 and 31/07/2018, inter-alia, stating that the order of payment of retiral dues of the private respondents would be processed after the quarters are vacated by them and therefore, writ petitions were filed by the private respondents.
7. In order to justify the orders passed by the appellant No.2, learned Advocate Mr.Dhotre for the appellant would submit that the private respondents failed to file an undertaking; within the stipulated time period as directed by this Court vide its order dated 27/06/2018. According to further submission, the appellant is a statutory organization and quarters are made for staff as well as the employees of industrial estate. The quarters are allotted subject to availability and other terms and conditions in the concerned estate and monthly rent is also deducted from the salary till the employee occupied the said quarter and if any of the employee transferred to some other region or gets retired, then quarter is required to be vacated and the Regional Manager being competent authority is to give certificate that the quarter has been vacated and it is only thereafter that the gratuity, leave encashment, etc., is being paid.
7.1 According to learned Advocate for the appellant, the policy for allotting the quarters permanently has been discontinued and the quarters in question are built in the public purpose area of the estate and the same are to be occupied by the employees posted in that estate. Since private respondents are no longer working on that post, the quarters Page 5 of 12 Downloaded on : Wed Jan 12 17:49:27 IST 2022 C/LPA/914/2020 CAV JUDGMENT DATED: 07/01/2022 are compulsorily required to be vacated and therefore, the claim of the private respondents is absolutely illegal since the quarters in question were never sold and same cannot be sold to private respondents.
7.2 It is further the submission of learned Advocate for the appellant that the private respondents were informed way- back in the year 2007 to the effect that quarter demanded by the private respondents are built for water supply service in the estate; hence cannot be allotted to them under the hire purchase system and therefore, option was given to the private respondents that if the private respondents is desirous of having any residential quarters then they may apply for the estate in Jamnagar, Junagadh and Chitra. In spite of such position prevalent at that time, the private respondents continued to occupy the quarters even after crossing the age of superannuation and therefore, the appellants left with no other option; but to take decision to withhold the retiral dues of the private respondents at the time of the retirement.
7.3 In support of the submissions made by learned Advocate for the appellant, reliance has been placed on the decision of the Hon'ble Apex Court in the case of (01) Wazir Chand vs. Union of India and others, [(2001) 6 SCC 596]; (02) Union of India and others vs. Shiv Charan, [1991 Supp (2) SCC 386] and (03) Steel Authority of India Ltd., vs. Raghbendra Singh [2020 SCC Online SC 1063].
8. Per contra, learned Advocate Mr.Samir Afzal Khan for the private respondents would submit that in all there were 75 employees and; out of which 73 employees have already been Page 6 of 12 Downloaded on : Wed Jan 12 17:49:27 IST 2022 C/LPA/914/2020 CAV JUDGMENT DATED: 07/01/2022 allotted quarters and so far as the private respondents are concerned, the formalities were already undertaken by the concerned Officer of the appellant-GIDC and the decision was taken in the year 2008 for allotting the quarters. Since the approval was not given, the private respondents were compelled to file the writ petition before this Court and the Court after hearing both the sides issued directions directing private respondents to file an undertaking and appellant-GIDC to take appropriate formal decision for allotting quarters.
8.1 According to learned Advocate for the private respondents, issue of quarters has nothing to do with the retiral dues which the private respondents are even otherwise entitled to receive since no any rules or policy permits the appellant authority to withhold the retiral dues. In nutshell; it is submitted that the pension and gratuity are no longer any bounty to be distributed by the Government to its employees on the retirement; but are valuable rights in their hands and further such right to receive pension was recognised as right to property by the Constitution Bench Judgment in the case of Deokinandan Prasad vs. State of Bihar [(1971) 2 SCC 33]. The Apex Court has observed and held that right to receive pension was recognised as a right to property and the same cannot be taken away without the due process of law as per the provisions of the Constitution of India.
9. Upon hearing the submissions made at bar, it appears that the appellants made number of submissions covering the aspect of right from allocation of quarters, commercial use thereof, non-filing of undertaking in time, discontinuation of policy to offer quarter on hire purchase system and non-
Page 7 of 12 Downloaded on : Wed Jan 12 17:49:27 IST 2022C/LPA/914/2020 CAV JUDGMENT DATED: 07/01/2022 payment of penal rent on account of overstay and to till lastly, non-vacation of the quarters after crossing the age of superannuation.
10. The issue remains to be considered as to whether appellant-GIDC could have withhold the benefits viz., contributory provident fund, group savings link insurance, gratuity, etc., only on the ground that the private respondents failed to vacate the quarters immediately upon their retirement. The obvious answer which we would like to give is that the appellants could never pass such an order as a condition precedent to process the release of retiral dues on such grounds.
11. No doubt, the case law cited at bar by learned Advocate for the appellant do indicate that the action of concerned authority justifying adjustment of dues against the retiral dues of the employees when such action was made subject matter of proceedings, in the case of Steel Authority of India Ltd., vs. Raghbendra Singh (supra), the Apex Court has held that if an employee occupies the quarter beyond the specified period, the penal rent would be natural consequence and such penal rent can be adjusted against the dues payable including gratuity and also in other case cited at bar.
12. Now, coming to the facts of the present case, it is undisputed fact that no action either to recover penal rent of quarter was taken till 19/08/2020 when notices came to be issued by the appellant to the private respondents under the provisions of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972. In other words, the Page 8 of 12 Downloaded on : Wed Jan 12 17:49:27 IST 2022 C/LPA/914/2020 CAV JUDGMENT DATED: 07/01/2022 appellant did not take any action according to law enforce its right to recover the possession of quarters or determine the penal rent and therefore, it is not permissible to the appellant to pass such orders of the nature whereby to withhold the retirement dues and took the decision to make payment of retiral dues only after the quarters are to be vacated.
13. The proposition of law is well settled in the case of Gorakhpur University vs. Shitla Prasad Nagendra, reported in (2001) 6 SCC 591; wherein it is held that pension and gratuity are no longer matters of any bounty to be distributed by Government; but are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest. Similarly, in the case of State of Jharkhand vs. Jitendra Kumar Srivastava, [2013 (3) GLH 178] the Apex Court has in para 12 observed to the effect that right to receive pension was recognised as right to property by the Constitution Bench Judgment in the case of Deokinandan Prasad vs. State of Bihar [(1971) 2 SCC 33]. The Apex Court, while referring to the said judgment, has observed and held that right to receive pension was recognised as a right to property and the same cannot be taken away without the due process of law as per the provisions of the Constitution of India.
14. In the case on hand, it is evidently clear that the appellants are misusing the authority vested in them by passing such orders of withholding the retiral dues and took decision to make the payment of retiral dues only after Page 9 of 12 Downloaded on : Wed Jan 12 17:49:27 IST 2022 C/LPA/914/2020 CAV JUDGMENT DATED: 07/01/2022 eviction of quarters. Thus, such action on the part of the appellant authority is not based on the legal principle or any policy. Not only that; even the case law cited by the learned Advocate for the appellants do not permit such action and from the bare reading of the said cases, it appears that the retiral dues were never withhold by the concerned authority; but the same was paid after deducting penal rent etc. Thus, there is a great distinction between the two positions wherein; retiral dues are paid after adjusting penal rent etc., and as against this in the case on hand, the authority has withheld the payment of retiral dues on account of non-payment of penal rent. The judgment cited at bar by learned Advocate for the appellants is not at all helpful to them; but it is, on the contrary, against their own stand. The orders dated 30/04/2018 and 31/07/2018 have been passed on the premise that dues are outstanding. It is further stated that only after recovery of dues, followed by issuance of no due certificate, further followed by recovery of outstanding dues that the private respondents should be paid retirement dues. It is observed in the order that the amount of retiral dues should be paid only after possession of quarters are handed over and possession receipt is issued. The events that took place after disposal of writ petition by this Court on 27/06/2018 directing the appellant to consider the aspect of allocating quarters to private respondents. It appears that it is only by virtue of two communications, both dated 25/09/2018, GIDC required the private respondents to vacate the quarters. Till 25/09/2018, issue as regards unauthorized occupation would not arise. Be that as it may; the order dated 30/04/2018 and 31/07/2018 were passed by the appellants and appellants ought not to have treated any amount as outstanding on the part of the Page 10 of 12 Downloaded on : Wed Jan 12 17:49:27 IST 2022 C/LPA/914/2020 CAV JUDGMENT DATED: 07/01/2022 private respondents to be paid to the GIDC. No doubt, the leviability of penal rent in light of dispute with regard to allocation of quarter on hire purchase system made by the appellants in the year 2007 and other such aspects being subject matter of proceedings initiated under the provisions of Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972, this Court would not like to take this issue any further as it may cause prejudice to either parties. However, the fact remains that leviability of penal rent including issue of unauthorized occupation is yet to be considered by the competent authority in accordance with the law under the Act of 1972.
15. It is also noticed by the Court that the appellate authority did not undertake any exercise of preparing papers for making payment of retiral dues of the private respondent on the date when private respondents were retired / relieved from the service; to the contrary it has passed the orders of withholding the retiral dues without any authority of law and passed further two orders dated 25/09/1998 requiring the private respondents to vacate the quarters. Thus, there is a gross delay and lethargic approach on the part of the appellant in not releasing the retiral dues to the private respondents in time and the Court is not inclined to approve such highhandedness on the part of the appellant-authority which is against the settled principles of law of the land pronounced by the Hon'ble Apex Court as aforesaid.
16. In view of such position, we do not find any impropriety, illegality or perversity in the impugned common oral judgment and accordingly; we dismiss the present appeals. However, Page 11 of 12 Downloaded on : Wed Jan 12 17:49:27 IST 2022 C/LPA/914/2020 CAV JUDGMENT DATED: 07/01/2022 considering the conduct of the appellants to further justify its action by preferring such merit-less appeals, both on law and facts; while maintaining cost imposed by the learned Single Judge; we further impose a cost of Rs.10,000/- each to be paid to the private respondents; in addition to the cost imposed by the learned Single Judge which is directed to be paid within a period of four weeks from the date of pronouncement of the judgment.
In view of dismissal of the appeals, connected civil applications shall stand disposed of accordingly.
(S.H.VORA, J) (ANIRUDDHA P. MAYEE, J.) sompura Page 12 of 12 Downloaded on : Wed Jan 12 17:49:27 IST 2022